Inherently Risky?

Equine Activity Liability Laws are a legislative mandate that riding or other horse activities are dangerous and that participants in the activities assume the risk of being injured—if the injury results from an "inherent risk." Sounds good, but what, exactly, are inherent risks of an equine activity?

Some are obvious. Being kicked or being bitten or falling off, for example, are risks that cannot be separated from riding or working around horses, and that is what "inherent risk" really means. Other risks, such as negligence by the activity sponsor or faulty tack, clearly do not fit into the inherent risk category.

Then there’s everything in between. Horses have a propensity to shy away from things that frighten them, which sounds like an inherent risk, but what if the horse bolts due to a situation that could have been prevented and the rider is injured? Is it an inherent risk of riding, or negligence by the sponsor?

The Texas Supreme Court considered that question recently in Loftin v. Lee. The decision is not legal precedent outside the Lone Star State, but the result is useful guidance about the scope of inherent risk.

Lee decided to go riding with Loftin, a friend who owned and trained horses. Lee had been a horse breeder for years, but had limited experience as a rider. Loftin put Lee on "Smash," a 12-year-old gelding the owner bought as a barrel racer for her daughter. Despite Smash’s somewhat ominous name, Lee thought the horse "seemed calm, gentle, and not at all dangerous." The ride went well until Loftin led them through a boggy, wooded area. Both riders saw the mud, but neither tried to avoid it.

Already bothered by the mud, Smash bolted when a vine hanging from a tree bumped his flank. Lee came off and suffered a fractured vertebra. Lee filed a personal injury lawsuit and the case began a long and torturous journey through the Texas courts.

The trial court dismissed Lee’s lawsuit, reasoning that the state’s Equine Activity Liability Law barred claims for injury resulting from inherent risks. Lee appealed the dismissal; the Court of Appeals reversed and sent the case back for trial. Loftin appealed at that point; the Texas Supreme Court reversed the lower appellate court, deciding that the trial court’s application of the Equine Activity Liability Law had been correct in the first place. The final ruling came more than five years after the accident.

Lee argued that an inherent risk should be limited to those risks arising from "innate animal behavior." The Court explained that while Lee acknowledged that a horse might "become skittish in mud or when its flank is touched, and that such behavior is an inherent risk of riding," she argued that her injuries resulted only because she was put in a situation "where those propensities could cause harm." It was Loftin’s negligence, Lee argued, not Smash’s natural propensities, which caused the injury.

The Court disagreed.

"The Act simply cannot be fairly read to limit inherent risks to those which are unavoidably associated with equine behavior," the Court said. "Construed so narrowly, the Act would accomplish nothing." Although Loftin and Lee possibly could have avoided riding on the particular trail where the injury occurred, the Court explained that the "inherent risk in trail riding is that a horse will be spooked by natural conditions, if not mud and vines, then birds or shadows."

Lee also claimed that Loftin did not spend enough time evaluating her riding ability before putting her on Smash. Loftin said that she already knew enough about her friend’s riding skills and that the law does not require an "interrogation" before a rider is assigned a horse. The Court agreed that a "formal, searching inquiry" into a rider’s ability is not required and noted that Lee did not claim that more thorough questioning would have prevented the accident.

Was the Texas court correct that choosing a potentially dangerous path for a trail ride by the leader is an inherent risk?

About the Author

Milt Toby

Milt Toby is an author and attorney with a lifelong interest and involvement in the horse industry. He grew up showing American Saddlebreds, then switched to hunters, dressage, and combined training. He was an American Horse Shows Association steward at some of the country’s largest horse shows, and he has been to the races on six continents. Milt’s sixth book, Dancer’s Image: The Forgotten Story of the 1968 Kentucky Derby, was published recently by The History Press. His earlier books include The Complete Equine Legal and Business Handbook and Ruffian. Milt is a past Chair of the Kentucky Bar Association’s Equine Law Section. His website is www.miltonctoby.com.

Comments

The views expressed in the posts and comments of this blog do not necessarily reflect those of The Horse or Blood-Horse Publications. They should be understood as the personal opinions of the author. All readers are encouraged to leave comments; all points of view are welcome, but comments that are discourteous and/or off-topic may be removed.

A horse is a horse. A spook or a shy on a trail (or anywhere for that matter) is most definitely an inherent risk considering a horse is a prey animal and flight is a natural response.

The rider also isn't trapped in a particular situation, and can be held responsible as well. I've been in situations with horses I didn't know, and took it upon myself to say "I don't want this horse to freak out and me to potentially get hurt, lets turn around and go back"

Jessica

31 May 2011 1:21 PM

Having spent several years as a trail guide during high school and college, I have opinions on much of this post. :p First, I'd say that all riders from first-time vacationers on up through your vacationing pros need to understand that riding horses brings inherent risks and that riders are assuming that risk. If they don't know this, it's the responsibility of the host (trail barn, hosting friend, whomever) to make sure they understand this.

With that said, I do believe choice of trails should be included under inherent risk as the Court decision quoted above seemed to understand. If trails comprise separate risk, the next thing we'll have is people asking to have trail danger ratings and court judgments based on use of the more dangerous ones. I think this would be a rotten idea based on rapidly changing trail conditions and weather variations, and the cost/difficulty of establishing a system to do this. But more importantly, it feeds the perception that if "somebody" rated the trails, then "somebody" is going to make you safe... and who's really going to do that but ourselves? Take personal responsibility!

If the host feels a trail is too dangerous for the riders and/or horses present, then it should be avoided if there are safer alternatives. If no alternatives are present, the riders should discuss the risks ahead to see if it's worth riding through or if the group should turn back; that way they are at least informed of the additional risks ahead and can prepare. Only in really egregious situations might trail choice be considered a separate risk, and for those a jury should probably decide. (such as, say, riding through a lion/tiger/bear farm. :)

As for "vetting" out the riders... Obviously some people do not listen to instruction or are physically unfit to ride and pose a safety risk, and those people should not go on trail. It can be hard to tell someone they should not ride, but it's a lot easier than dealing with the aftermath of an accident.

I'd say that optimal safety relies on the instructor/guide's ability to quickly teach riding survival skills, so to speak, as needed as well as close monitoring and continuing instruction as needed during the ride. I'd say this is expected for paying trail riders, perhaps not so much for groups of friends bringing along a newbie but no less important. Whether that instruction/monitoring should be a legal obligation in all trail riding situations, Milt, is why we have you. :)

Christy

31 May 2011 1:36 PM

I agree with Christy entirely. I will only add that I would be a HUGE fan of a basic rider certification program if anyone cared to push that. I'd feel a lot safer if a prospective rider, buyer, leaser, or boarder had in his pocket a little card that suggested they knew which side the saddle goes on and what a horse does besides eat and look pretty. Not to say that it would be feasible to force anyone who wants to ride to get a card. That's a tangled legal web of rights and responsibilities. And I certainly get where this could turn into a rating system for riders as well as situation safety ratings and on and on. But an operator/guide who cares enough might look past the fresh cash in the client's hand if that little card meant lower insurance premiums and fewer lawsuits.

Joanne

31 May 2011 4:30 PM

Lets make a long story short. Ride at your own risk. Once you enter the property, you enter and ride at your own risk, otherwise turn round and go elsewhere!There should be no legalities!

Dianne

01 Jun 2011 1:15 AM

I think Texas handeled the situation beautifully! It sounds like the horse was a perfectly calm quiet guy, and reacted as horses can be expected to react to mud: skittishly.

I agree with Dianne, accept personal responsibility. Part of that is knowing your own limitations. Lee is/was a professional in the industry(even is she didn't ride much). A person riding for the first time might have had the excuse that the trail conditions were unsafe, but I would expect an equine professional to be able to say "I don't think I'm skilled enough to ride this". I've done that plenty of times myself.

Jennifer

01 Jun 2011 2:25 PM

On Feb. 1, 2008 my daughter was killed in a riding 'accident'. She was at a Dressage lesson with Rene Lopez at the Equestrian Ct. @ Retama when a child started up a motorized toy car just on the out side of the arena fence where she was walking her horse during a break in the lesson. Unfortunately Chandra had just leaned over to adjust her foot in the stirrup when he started the car. The horse jumped to the side and Chandra, unbalanced, fell off hitting her head on the pipe fence. She was rushed to BAMC for surgery, which was succesful but she developed MERSA, a bacteria horses carry, and died 28 days later without waking up. It was her fault for not wearing a helmet. It was Rene's fault for letting the kid play with the car near the arena. It was not the fault of the horse. He was a very well trained Dressage horse, but he was afraid of the noise the toy car made.

It doesn't matter whoes fault it was--she is dead. Everyone who rides needs to wear a helmet.

Connie

01 Jun 2011 3:43 PM

Connie, it sounds cliche, but I truly am sorry for your loss. I hope people will pay attention to your post and wear helmets. It doesn't matter what discipline one rides, helmet use should be automatic. Inherent risk means accidents not only CAN happen, but WILL. Not every ride will involve an accident, but no experienced rider can say she has never had any sort of riding accident.

Elissa

01 Jun 2011 5:11 PM

wow, some friend. Makes you scared to let your horsey friends come ride one of your horses with you for a fun afternoon ride, no matter what their experience. If I'm unsure of something on the trail, or my horse is, I GET OFF and walk them through it, around it whatever, so that I, as well as the horse feels secure with it. And Yes, a helment is ALWAYS a must. Connie, I'm sorry for your loss.

The reason we play with these ponies, and not basketballs, is because they have brains. Thats part of the attraction. With it comes their own opinion of what is scary. Sometimes we have warning, some times we don't.

susie

02 Jun 2011 8:54 AM

After 30 years of riding and plenty of that being on the trail I finally had my riding crash on an unfamiliar horse. I made a lot of bad decisions that contributed to it (but never thought of blaming the horses owner), but the one thing that saved me was my helmet which split on impact but saved my head. I want to respond to the poster though who said "Get off the horse" because that was the main lesson I learned. I never hesitate to dismount in an uncomfortable situation now. And I don't care what my cowboy friends or the horse thinks about it. I even practice quick dismounts in the roundpen. So that was my painful lesson - get off the horse when the situation is dangerous, and always wear a helmet. PS - what kind of "friend" sues another friend?

Featured Adoptable Horse

Smiley

Smiley is a 13 y/o TB gelding who was recently diagnosed with ringbone. Before his diagnosis, he was a wonderfully calm, show jumper "packer" lesson horse and was also the barn babysitter. Now, we'd love for him to be a full-time companion/babysi ... Read More